Austin sick leave ordinance blocked by appeals court

The Texas 3rd Court of Appeals has granted opponents of a paid sick leave ordinance in Austin an injunction to block the ordinance from taking effect on Oct.1.

San Antonio City Council members, who passed their own sick leave ordinance last week, are watching the Austin court case carefully. Despite voting with the majority, Mayor Ron Nirenberg and council member Manny Pelaez, who has labor employment expertise, doubt their ordinance — the second sick-leave measure among Texas cities — could withstand a legal challenge.

If either ordinance survives that test, it will almost certainly face a political challenge. As The Texas Monitor reported in February, when the Austin City Council passed the sick leave ordinance, state Rep. Paul Workman, R-Austin, pledged to introduce a bill outlawing such measures in the upcoming legislative session.

News of San Antonio’s decision “only makes me more determined to do it,” Workman told the Austin American-Statesman late last week. “I predicted this would happen, and it has.”

State Sen. Donna Campbell, R-New Braunfels, issued a statement after the San Antonio vote saying she is prepared to introduce a companion bill in the Senate. “I stand ready to introduce legislation that protects the rights of business owners and the best interests of the Texas economy,” the release said.

Campbell and Workman are among 30 legislators who signed an amicus brief in support of the suit brought in April on behalf of the Texas Association of Business, the National Federation of Independent Business, the American Staffing Association and other business groups to strike down Austin’s ordinance.

Both ordinances require that all businesses with more than 15 employees pay for up to eight work days or 64 hours of sick leave a year, depending on the hours worked by the employee. Smaller businesses are required to provide up to six days or 48 hours of paid sick leave.

The San Antonio City Council chose to pass it instead. Mayor Nirenberg told the San Antonio Express-News he supports paid sick leave because it’s “good for business and good for working families,” but said the issue is best decided at the state level, where legislation can bring uniformity to sick leave guidelines.

Council member Pelaez, however, told the Express-News he believes the ordinance the city just passed is in violation of state law, specifically the Texas Minimum Wage Act. This is one of the contentions in the Austin lawsuit.

“It’s my formal, professional opinion that this is preempted by state law,” Pelaez told the Texas Tribune. “The Supreme Court is going to invalidate a San Antonio municipal paid sick leave ordinance. And if they don’t, the legislature will do it for them. I believe this is dead on arrival in Austin.”

“I don’t anticipate the San Antonio ordinance to ever go into effect,” said Rob Henneke, the Texas Public Policy Foundation attorney who brought the Austin lawsuit.

Nirenberg also said he objected to the way paid sick leave was forced on the city without discussion about impacts of the ordinance on business and labor interests.

Business leaders in Austin complained bitterly at the time that council member Greg Casar, who authored the sick leave ordinance, had rushed it through the council in less than a month. They said the council was, by turns, hostile and indifferent to their complaints that the ordinance could cost businesses millions of dollars annually and eventually cost some employees their jobs.

Casar remained optimistic, despite the appeals court injunction. “Paid sick days policies are common-sense solutions to protect the health and safety of people in our communities — that’s why our law passed in Austin and now in San Antonio this week,” he said. “Ken Paxton keeps pushing the same ridiculous lie that guaranteeing paid sick days for all is the same thing as raising the minimum wage.”

The appeals court made no assessment of the legal merits of the lawsuit, but granted an injunction that State District Judge Tim Sulak had deniedin June. Sulak said at the time the appeals court was the appropriate place to decide if an injunction was warranted.

Mark Lisheron has more than 30 years of experience in newspapers and was most recently the managing editor for Reason.com. He also served as deputy editor, national reporter and Austin bureau chief for Watchdog.org. He was the founding Austin bureau chief for the bureau's predecessor, Texas Watchdog, winning the First Amendment Award from the Society of Professional Journalists in Texas.